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NAVY | DRB | 2002_Navy | ND02-00914
Original file (ND02-00914.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-SN, USN
Docket No. ND02-00914

Applicant’s Request
The application for discharge review, received 020612, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030311. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Dear DRB or BCMR The following issues are the reason I believe my discharge should be upgraded to Honorable. If you disagree please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as than honorable does not apply to my case because of the evidence I am submitting. When I got back from overseas I just couldn't adjust to state-side duty, but I have been a good citizen since my discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's resumé

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     900330 - 900719  COG

 Period of Service Under Review :
Date of Enlistment: 900720               Date of Discharge: 930515

 Length of Service (years, months, days):

         Active: 02 09 26
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 27

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)    Behavior: 3.30 (2)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM (2), NEA, SSDR (2), KLM, NUC

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

921117:  NJP for violation of UCMJ, Article 117: Provoking speeches or gestures on 921104.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
930401:  Drug and Alcohol Abuse Report: Cocaine abuse. Unit sweep urinalysis 930322. Abuse denied. DAPA recommended separation. Physician found Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: Service member has been identified through the command urinalysis on 18 Mar. 93, during a unit sweep. Message came back as positive abuse with cocaine. Individual was screened by medical officer on board TRENTON and was determined not to be physically or psychologically dependent on cocaine. CO's NJP was held on 02 Apr. 93, and CO referred case to special court martial, to separate from service not to include VA hospital benefits.
930405:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

930408:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. [Extracted from Commanding Officer's message dated 930508.]
930409:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
930409:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. [Extracted from Commanding Officer's message dated 930508.]
930508:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930513:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 930515 under other than honorable conditions for misconduct due to drug abuse (use) (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. The Applicant used illegal drugs as evidenced by a positive urinalysis. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief is therefore denied.

There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. E vidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)
 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE .

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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